Verdict: Not Guilty

George Bisharat is a Palestinian-American law professor who has made a career out of defaming Israel. Yesterday the New York Times donated space on its op-ed page for Bisharat’s latest screed, titled “Israel On Trial.” The piece, false where it is not misleading, is a disgrace. It begins:

Bisharat fails to mention that, as we noted here, that “chilling testimony” turned out to be untrue.

Hamas’s indiscriminate rocket attacks on Israeli civilians also constituted war crimes, but do not excuse Israel’s transgressions.

So why isn’t the article titled “Palestinians On Trial?” Bisharat evidently thinks that the Palestinians’ undoubted war crimes are somehow “excused,” since he never mentions them again. Excused by what?

Bisharat goes on to accuse Israel of six “offenses.”

Violating its duty to protect the civilian population of the Gaza Strip. Despite Israel’s 2005 “disengagement” from Gaza, the territory remains occupied. Israel unleashed military firepower against a people it is legally bound to protect.

The statement that Gaza “remains occupied” is simply false. It is because Israel withdrew from Gaza that Hamas was able to take control and launch thousands of rockets and mortars into Israel over a period of years. One wonders: is it normally the Times’ policy to publish op-eds that include obvious misstatements of fact?

Imposing collective punishment in the form of a blockade, in violation of Article 33 of the Fourth Geneva Convention.

The section of the Fourth Geneva Convention that contains Article 33 relates to “protected persons,” defined as follows:

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

Gazans were not, and are not, “in the hands of” Israel for purposes of this provision, which therefore has no application. Israel had a perfect right to prevent military supplies from being shipped or smuggled into Gaza so that more rockets could be launched. Bisharat’s indictment continues:

Deliberately attacking civilian targets. The laws of war permit attacking a civilian object only when it is making an effective contribution to military action and a definite military advantage is gained by its destruction. Yet an Israeli general, Dan Harel, said, “We are hitting not only terrorists and launchers, but also the whole Hamas government and all its wings.” An Israeli military spokeswoman, Maj. Avital Leibovich, avowed that “anything affiliated with Hamas is a legitimate target.”

On Bisharat’s theory, there is not a single legitimate military target anywhere in Gaza. Hamas doesn’t maintain air fields, barracks and naval shipyards. Its members scuttle out from their hiding places and erect rocket launchers in school yards. They shoot from inside and adjacent to residences. They do this for the specific purpose of attracting defensive fire that will cause civilian casualties. Oh, and, by the way: let’s just pretend for a moment that Part III of the Fourth Geneva Convention applies, as Bisharat clams. Article 28 says:

The presence of a protected person may not be used to render certain points or areas immune from military operations.

Bisharat’s indictment continues:

Willfully killing civilians without military justification. When civilian institutions are struck, civilians — persons who are not members of the armed forces of a warring party, and are not taking direct part in hostilities — are killed.

Well, yes–that’s why Hamas’s principal military strategy is the employment of human shields. Those who want to avoid civilian casualties in Gaza should stop firing rockets from there. There is no evidence, however, that Israel’s military killed any civilians in Gaza otherwise than by accident in the course of operations undertaken for self-defense. Bisharat repeats the canard that most of those killed in Gaza were civilians, citing the notoriously anti-Israel Richard Falk, who thinks September 11 was an inside job, as authority:

Of 1,434 Palestinians killed in the Gaza invasion, 960 were civilians, including 121 women and 288 children, according to a United Nations special rapporteur, Richard Falk.

The IDF checked casualty lists against intelligence reports on Hamas and painstakingly identified those who were reported killed. The result:

According to the data gathered by the Research Department of the Israel Defense Intelligence, there were 1166 names of Palestinians killed during Operation Cast Lead. 709 of them are identified as Hamas terror operatives, amongst them several from various other terror organizations. Furthermore, it has been found that 295 uninvolved Palestinians were killed during the operation, 89 of them under the age of 16, and 49 of them women. In addition, there are 162 names of men that have not yet been attributed to any organization.

Bisharat continues:

Deliberately employing disproportionate force. Last year, Gen. Gadi Eisenkot, head of Israel’s northern command, speaking on possible future conflicts with neighbors, stated, “We will wield disproportionate power against every village from which shots are fired on Israel, and cause immense damage and destruction.” Such a frank admission of illegal intent can constitute evidence in a criminal prosecution.

The “proportionate force” theory is beloved by Israel-bashers. In fact, however, no such principle exists. It was invented for the occasion and has never been used as a club against any nation except Israel. No sane country, when attacked, responds “proportionally.” Was Cold Harbor proportionate to Fort Sumter? Was the war in the Pacific–forget about Hiroshima!–proportionate to Pearl Harbor? Nazi Germany never did attack the United States, with the exception of its submarine attacks on merchant shipping. Was D-Day proportionate to those U-Boat attacks? Was the fire-bombing of Dresden?

A sane country, when attacked, reacts with all of the force at its command in order to win the war that was started by its enemy. Has anyone ever questioned this fundamental right of self-defense, except as applied to Israel?

There was once a time when it would have made sense to wonder why the New York Times would publish such drivel. Now, publishing left-wing drivel is the paper’s business plan. Bankruptcy impends.